The Prosecutor alleged that all 18 accused had joined in a general
conspiracy to kill 50 officers. (Footnote 1: It should be noted that none of the charges in this trial
were charges of conspiracy as such. It is worth recalling that in
his summing up in the trial of Georg Tyrolt and others, before a British Military Court, Helmstedt, Germany, from
20th May-24th June, 1946, the Judge Advocate
said that : " There is nothing magic about a joint charge except
that it enables you to try more than one person at one time. . .
.") He rested his case on the
notoriety of the Sagan escape in view of the nation-wide hue and cry,
on the publication of it in the Police Gazette and on the uniformity
of the orders received by the various Commanding Officers of the
regional headquarters. The two main arguments for the defence were a
legal and a factual one (i) that there could be no conspiracy between
military superiors and their subordinates, and (ii) that there was no
evidence of any connection between the accused or of any co-operation
between their various regional headquarters.

The Judge Advocate did not deal with these arguments or give any
reason for his advice to the court to disregard the first two charges,
but it is clear that the first argument is not sound. This argument
was rejected in the Nuremberg judgment when dealing with the
conspiracy between major war criminals :

" The argument that such
common planning cannot exist when there is a complete dictatorship is
unsound. The plan, in the execution of which a number of persons
participated, is still a plan even though conceived by only one of
them, and those who executed the plan do not avoid responsibility by
saying that they acted under the direction of the man who conceived
it." (Footnote 2: British Command Paper. Cmd.
6964, p. 43)

As to the second argument, it seems that the
court found that though there was evidence that the members of every
group of accused were together concerned in the killing of the
officers handed over to them, and were therefore guilty of one of
the charges (iii)-(ix), there was not enough evidence beyond that
to show that they knew what had been planned in Berlin or what was
happening outside their region and therefore, a fortiori, not
enough evidence that they were together concerned in the killing
of 50 out of the 80 escaped officers.

In the case of Max Wielen,
unlike that of the other 17 accused, there was evidence of his
participation both in the preparation and in the concealment of the
crime. It seems that, basing its conclusions on this additional
evidence which was not available against the other accused, the court
found him guilty of being concerned, together with Generals Nebe and
Mueller, in the killing of the 50 officers.

p.46

Regarding charges (iii)-(ix), the Judge Advocate thus defined the
term " concerned in the killing " : " I do not think
the prosecution can ask you to consider a case of a minor official who
was concerned with some administrative matter. What they had in
mind is that the persons concerned must have been part of the machine
doing some duty, carrying out some performance which went on directly
to achieve the killing, that it had some real bearing on the killing,
would not have been so effective or been done so expeditiously if that
person had not contributed his willing aid."

By finding the accused Schimmel and Gmeiner guilty, the court
indicated that being " concerned in the killing " does not
necessarily require the presence of the accused on the scene of the
crime, since both Schimmel and Gmeiner gave instructions to their
subordinates but were not present at the shooting. This has been held
by the courts in previous war crimes trials. (Footnote 1: See
for instance Volume V of this series, pp. 45-53)

The degree of participation may vary within the term "
concerned in the killing." Whereas all participants were found
guilty whether they had given the order or fired the fatal shot
themselves or acted as an escort or kept off the
public, the prominence of the part they played found expression in the
sentences. Whereas the Commanding Officer who gave the order and the
men who fired the shots or acted as escorts were sentenced to death,
the two drivers, Struve and Detikmann, were sentenced to imprisonment
for 10 years. (Footnote 2: For a similar case on degrees of
participation, see the Almelo Trial, Volume I, p. 43)

This defence was relied on by all accused in view of the order from
Hitler. It was also relied upon by some of the junior ranks amongst
the accused, who pleaded that they acted under orders from their
Commanding Officers.

The defence quoted paragraph 47 of the German
Military Penal Code :

" If in the execution of an order relating to service matters
the penal law is violated, the Commanding Officer is solely
responsible. Nevertheless, the subordinate obeying the order is
subject to a penalty as an accomplice : (1) if he transgressed the
order given, (2) if he knew that the order of the Commanding Officer
concerned an action, the purpose of
which was to commit a general or a military crime or misdemeanour."

Counsel argued that paragraph 47, sub-paragraph (2) required positive
knowledge of the illegality of the order on the part of the accused,
and that the accused in this case had no such positive knowledge,
though they may have had doubts as to the legality of the order.

The Judge Advocate, after quoting extensively from Professor
Lauterpachts article in the British
Year Book of International Law,
1944, read paragraph 433 of Chapter 14 of the Manual of Military Law ;
(Footnote 3: See Volume I, p.
18) and with regard to the last
sentence of that paragraph that the accused could not escape liability
" if in obedience to a command they committed acts which both
violated unchallenged rules of warfare and outraged the general
sentiment of

p.47

humanity ", the Judge Advocate said :
" I think there can be no doubt apart from any other matter, that
none of the accused in this case would be outside those concluding
words, if he really knew that he was taking part in the killing of
recaptured prisoners of war who had done nothing else but
escape." (Footnote 1: As to the
defence of Superior Orders
generally, see p. 24, note 2.)

This case seems to furnish a practical illustration
of the contention that if any other interpretation of the plea of
superior orders were to prevail only a very small number of high
ranking persons, if anyone at all, could be. punished for flagrant
breaches of international law. Since the orders for the killing in
this case were given by the Head of the State himself, only he could
have been punished for the murder of the 50 officers.

Counsel for the defence submitted that to support a plea of duress
the threat need not be immediate but may be one of future injury.
Counsel quoted a case before the German High Court (R.G.E. 66, page
98) where two defendants charged with perjury pleaded that before
giving evidence in criminal proceedings against a political
organisation, they had been threatened by the members of that
organisation with serious physical injury at some future date if they
told the truth. The plea was successful and the two accused were
acquitted.

The Prosecutor in his closing address quoted paragraph 10, Chapter
7, of the Manual of Military Law :

"An act may also be excused if committed by a person acting in
subjection to the power of others providing that he is compelled to
act as he does by threats of death or serious physical injury
continued during the whole time that he so acts and that the part
taken by him in the unlawful act or acts is throughout strictly a
subordinate part."

He argued that with the exception of the two
drivers it could not be said that any of the accused had played a
strictly subordinate part.

The Judge Advocate, quoting from Archbolds Criminal
Pleadings (1943 Edition, page 19), said
: " The same principle which excuses those who have no mental
will in the prepetration of offences protects from the punishment of
the law those who commit crimes in subjection to the power of others
and not as a result of an uncontrolled free action proceeding from
themselves. But if a merely moral force is used as threats, duress of
imprisonment, or even an assault to the peril of his life in order to
compel the accused to kill, this is no excuse in law."

In this trial, as well as in many other war crimes trials (Footnote
2: See also Volume I, p. 19 ; Volume II, pp. 106 and
107.) the
decision in the above case was quoted, both by the Prosecutor and by
the defence.

The case was cited by the prosecution to support the proposition
that the plea of superior orders provides no excuse in international
law, but

p.48

only goes to mitigation of punishment. The defence tried to
distinguish the Llandovery Castle Case by saying that in
that case the court found " as a fact " that the accused
were fully aware that the firing on survivors by a U-boat was a crime,
and therefore the court held that they were responsible under
paragraph 47/2 of the German Military Penal Code. If,
however, the accused, as in the Stalag Luft III case, had no such
positive knowledge of the criminality of their action, they must be
acquitted.

It may thus prove useful to analyse shortly the judgment in the Llandovery
Castle Case which was tried before the German Supreme Court at
Leipzig in July, 1921. The judgment is in its entirety based on German
municipal law.

(i)
The Facts

The " Llandovery Castle " was a British hospital ship
which was sunk by a German submarine. The submarine commander, in an
attempt to eliminate all traces of the sinking, gave orders to fire on
the life boats. All persons in two of the three lifeboats were killed.
The Commander, Patzig, was not on trial, the two accused being both
lieutenants on board the submarine.

(ii)
The PIea of Superior Orders

The court, applying paragraph 47 of the German Military
Penal Code, (Footnote: See p. 46.) said in its judgment : " Patzigs
order does not free the accused from guilt. It is true that according
to paragraph 47 of the German Military Penal Code,
if the execution of an order in the ordinary course of duty
involves such a violation of the law as is punishable the superior
officer issuing such an order is alone responsible. According to
sub-paragraph (2), however, a subordinate obeying such an order is
liable to punishment if it was known to him that the order of his
superior involved the infringement of civil or military law. This
applies in the case of the accused. It is certainly to be urged in
favour of the military subordinates that they are under no obligation
to question the order of a superior officer and they can count upon
its legality, but no such confidence can be held to exist if such an
order is universally known to everybody, including also the accused,
to be without any doubt whatever against the law. This happens only in
rare and exceptional cases, but this case was precisely one of them
for in the present instance it was perfectly clear to the accused that
killing defenceless people in the lifeboats could be nothing else but
a breach of the law."

" In estimating the punishment, it is in the first place to be
borne in mind that the principal guilt rests with the commander,
Patzig, under whose orders the accused acted. They should certainly
have refused to obey the order. This would have required a specially
high degree of resolution. This justifies the recognition of
mitigating circumstances in determining the punishment under
paragraphs 213, 49 and 244 of the State Penal Code.
A severe sentence must, however, be passed "

(iii)
Absence of Mens
Rea as a Defence

The court pointed out that any violation of the law of nations in
warfare is a punishable offence, so far as in general a penalty is
attached to the deed.

p.49

The killing of enemies in war is in accordance with the will of the
State that makes war (whose laws as to the legality or illegality on
the question of killing are decisive) only insofar as such killing is
in accordance with the conditions and limitations imposed by the law
of nations. The fact that his deed is a violation of international
law, must be well known to the doer, apart from acts of carelessness in
which careless ignorance is a sufficient excuse. In examining the
question of the existence of this knowledge, the ambiguity of many of
the rules of international. law, as well as the actual circumstances
of the case, must be borne in mind because in war time decisions
of great importance have frequently to be made on very insufficient
information. This consideration, however, cannot be applied to the
case at present before the court. The rule of international law which
is here involved is simple and is universally known.

(iv)
The Defence of Duress

This defence was rejected in the judgment in the following words :
" The defence finally points out that the accused must have
considered that Patzig would have enforced his orders? weapon in hand,
if they had not obeyed them. This possibility is rejected. If Patzig
had been faced by a refusal on the part of his subordinates he would
have been compelled to desist from his purpose as then it would have
been impossible for him to attain his object, the concealment of the
torpedoing of the  Llandovery Castle. This was quite well known
to the accused who had witnessed the affair. From the point of view of
necessity (paragraph 52 of the Penal Code) they could
not then claim to be acquitted."

It would seem therefore that the decision supports two propositions
: (1) that according to German law the maxim Respondeat
superior does not apply to cases where the order involves
the violation of a rule of international law, if that rule is "
simple and universally known " ; (2) that the plea of duress or
necessity will not succeed if the accused, by refusing the orders of
his superior officer could have forced him to desist from his
illegal purpose. .

The first proposition shows that on the question of superior orders
German law is roughly in line with international law as conceived in
other countries, and thus serves to refute the argument put forward
by several counsel in the Stalag Luft III case that by applying
paragraph 443 of the British Manual of Military Law,
British Military Courts apply ex post facto legislation,
if there were indeed any force in this argument at all, in view of the
fact that the Manual of Military Law is
not a legislative instrument, but a War Office publication intended to
acquaint army officers with those branches of the law with which they
may have to deal in the execution of their duty.

The second
proposition seems to be a valuable one. The judgment leaves the
question open whether in a case where the military superior forces
the military subordinate at pistol point to obey his illegal orders,
the combined defences of superior orders and duress would avail the
accused. But the court made it clear that these two defences will not
avail the accused if no such threat has actually been uttered and
where the accused by refusing the illegal order could have frustrated
the intention of his superior officer to keep the crime that has been
or is about to be committed secret. This secrecy and the absence of
actual threats from [sic/form] essential elements of most cases of clandestine.

p.50

killings of prisoners of war or enemy civilians on
orders of a higher authority which so frequently are the subject of
trials before military courts. (Footnote 1: See Almelo
Trial, Volume I, p. 35 ;
Jaluit Atoll Case, Volume I,
p. 21, Dreierwalde Case, Volume I, p. 81.)
It would appear from the judgment in
this case that also acording to German law-not only according to
English law-the defence of duress does not avail the accused in such
cases.

The defence argued that according to the law prevailing at the time
of the offence in Germany, any order emanating from the Head of the
State was a legal order. Disobeying this Hitler order would have been
a criminal offence according to German law. On the other hand, obeying
the order was an offence according to international law. International
law must not place the subject in an insoluable dilemma where he has
only two possible courses of action, both of which are criminal, thus
leaving him no " way out ". In order to be able to say that
a person has committed an offence, there must be an alternative course
open to him which does not constitute an offence. Some writers,
according to counsel, take the view that in any conflict between
municipal law and international law, municipal law is supreme and
commands the undivided loyalty of all citizens, but - whatever view is
taken of this question - in the sphere of criminal law, the individual
must be protected and a man who has no " way out " cannot be
punished.

The Judge Advocate did not deal with this argument and the court by
finding all accused guilty, obviously held it invalid. It would seem
that whatever view is taken once the conflict between municipal and
international law arises, the main weakness of the argument lies in
the fact that one of its premises, i.e. that the action of the accused
were legal under German law, is very doubtful. Though some of the
philosophers and propagandists of Hitler Germany insisted that the
Führers word was law, there does not seem to be any statute or
decree-and there was no evidence produced in this trial-to the effect
that a spoken command of the Head of the State had legal force or, as
some counsel suggested, could replace the finding and sentence of a
court of law. Assuming the legality under municipal law was
established, the trend of legal opinion is that international law must
prevail over municipal law and courts in recent years have treated
this defence in a way similar to that of superior orders. (Footnote 2
: See Volume V, pp. 22-4. Cf. for instance Article 6 of the
Charter of the International Military Tribunal : " The following
acts or any of them are crimes coming within the jurisdiction of the Tribunal for which there shall be individual
responsibility . . . (c) crimes against humanity . . . whether or not
in violation of the domestic law of the country where perpetrated." As to an attempt to reconcile the dilemma in
which the subordinate is placed, see Gluck, War Crimes, Their Prosecution and
Punishment, pp. 155-l
56, and Volume III of this series, p.
64)

This defence was raised in two different ways : (1) amounting to a
mistake of Iaw, i.e. the defendants were not aware of the illegality
of their action. In a case like this the maxim ignorantia iuris nonexcusat certainly applies.

p.51

Professor Lauterpacht in the British Year Book of International
Law, 1944, page 76, says : " No person can be allowed to plead that he
was unaware of the prohibition of killing prisoners of war who had
surrendered at discretion ; " (2) amounting to mistake of fact,
i.e. the accused did not realise that the prisoners were prisoners of
war, they thought that they were spies and saboteurs. The Prosecutor
in his closing address said that if the court found that the accused
acted in such a belief they should acquit them. The Prosecutor in
this trial obviously felt confident that he had proved beyond
reasonable doubt that the defendants knew these prisoners to be
prisoners of war and therefore apparently to facilitate the argument,
reduced it to an issue of fact : "Did the defendants know or did they not know that the
prisoners they killed were prisoners of war ? " The implication,
however, that the accused would have been entitled to an acquittal if
they had reasonable grounds to believe that the persons they killed
were spies or saboteurs, is not correct. Even a spy is entitled to a
trial. In case these prisoners had been spies, the relevant question
would have been whether they had been given a regular trial. It was
said by the Judge Advocate in the Almelo Trial that the decisive
question was " whether the accused honestly believed that the men
they shot had been tried according to law and that they therefore
believed that in shooting them they carried out a lawful execution
".(Footnote 1: See Volume I of this series, p.
44.)

The Judge Advocate, in summing up, pointed out that in this case it
must have been obvious from the circumstances to the meanest
intelligence that this was not a lawful execution.

Counsel for the defence argued that war crimes could only be
committed by combatants or, in exceptional cases, by non-combatants
when they exercise governmental functions in occupied territories.
Against this argument the Prosecutor quoted paragraph 441 of Chapter
14 of the Manual of Military
Law : " The term  war crime 
is a technical expression for such an act of enemy soldiers and
enemy civilians as may be visited by punishment or capture of the
offenders."

The decision of the court supports the rule that anybody who
commits a war crime can be punished by a military court, regardless of
his status (Footnote 2 : For other examples see Zyklon
B. Case, Volume
I, p. 103 ; Essen Lynching Case, Volume I, pp. 82-92, and
Hadamar Trial, Volume I, pp.
46-52)

Both the Prosecutor and the Judge Advocate pointed out that the prosecutions case was to a large extent based on the
uncorroborated evidence of an accomplice or of accomplices and that
one accused cannot corroborate another. Both warned the court of the
danger of acting on the uncorroborated testimony of an accomplice, but
added that the court could convict on such evidence if they were
clearly satisfied that the evidence given was true. By so doing, the
Judge Advocate applied mutatis mutandis, and on the
plane of international law a rule of practice followed in English
criminal courts, that it is the duty of the Judge to caution the jury
as to the danger of conviction

p.52

on the evidence of an accomplice without some corroboration in a
material particular which connects the prisoner with the witnesss
story. (Footnote 1: R. v. Baskerville (1916),
2.K.B. 658)

Counsel for the accused Zacharias objected to a deposition made by
his client being admitted as evidence on the grounds that it was
obtained by duress. The accused Zacharias alleged that he was put in
fear of severe physical .injury as well as struck by an interrogating
officer.

The Judge Advocate quoted Regulation 8 (i) of the Royal
Warrant (A.0./81,ix1945) : " . . . A military court convened
under these regulations may take into consideration any oral statement
or any document appearing on the face of it to be authentic, provided
the statement or document appears to the court to be of assistance in
proving or disproving the charge, and notwithstanding such statement
or document would not be admissible as evidence in proceedings before
a Field General Court Martial."

He went on to say : " In
view of this, I am prepared to advise the court that if they are
satisfied by the evidence of Lieutenant-Colonel Scotland that a
confession was in fact made and you think to examine it will assist in
proving or disproving the charge, against Zacharias, then you may
admit it ". "At a later stage in my view, it would be proper
if Zacharias wishes to do so, to give his version of how this
confession was obtained, and when you have heard him, that may detract
or add to the weight of the statement."

The decision of the court
to admit Zacharias statement is in line with other decisions by
military courts. (Footnote 2: See Volume III, p. 71
and Volume II, pp. 135) In practice in trials under the Royal Warrant the
defence cannot object to the court receiving in evidence a confession
by an accused on the grounds that it was not made voluntarily. The
defence is, however, entitled to call evidence to prove the
involuntary nature of the confession and it is thus left to the court
to decide what weight they eventually place on such a confession.